NO. 96-062 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

APPEAL FROM: District Court ofthe Thirteenth Judicial District,

In and for the County of Yellowstone, TheHonorable Robert W.Holmstrom, Judge presiding.

COUNSELOFRECORD:

For Appellant: Carrie L. Garber andJeffrey G.Michael, Deputy Public Defenders, Billings, Montana For Respondent: Hon. Joseph P.Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Filed: Submitted onBriefs: August 22, 1996 Decided: December 27, 1996Justice Charles E. Erdmann delivered the opinion of the court.

Defendant Dale R. Walker appeals from the judgment and commitment entered by the Thirteenth Judicial District Court, Yellowstone County, convicting him of felony forgery. Weaffirm. The issues onappeal are as follows: 1. Did the District Court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?2. Did the District Court err in denying Walker's motion for

amistrial whenoneof the State's witnesses testified that hewas familiar with Walker from past forgery investigations? 3. Did the District Court err indenying Walker's motion for

anewtrial onthe ground of jury misconduct? FACTS On the afternoon of December 13, 1994, a man identifying himself asTerry L. Bergstrom approached teller Mary JoKellison at the Security Federal Bank in Laurel, Montana, andattempted to cash

a$2000 check. Thecheck wasissued bythe Edward D. Jones Co. to Terry L. Bergstrom onthe custodial account of WendyJoBergstrom. Thecheck wasendorsed with both signatures andwhat appeared to be corresponding social security numbers. Mary Jorequested approval from her supervisor, Vickie Ripley, before cashing the check. Vickie refused to approve the transaction because she did not recognize the customer. Shetold Mary Jothat the check would be approved if the customer opened anaccount.

2The customer agreed to open both a checking and savings

account and presented Mary Jowith atemporary driver's license which identified him asTerry L. Bergstrom. After completing the paperwork necessary to open the accounts, $1000 wasdeposited into the checking account, $500 into the savings account, and $500 was distributed toMr. Bergstrom, along with anewchecking account kit containing eight counter checks. Later that afternoon, Vickie received acall from the Billings branch of Security Federal Bank. Mr. Bergstrom wasatthe Billings branch trying to cash a$600counter check andthe bank wascalling to request a signature verification. Vickie became suspicious since sheknew that Mr. Bergstrom hadjust received $500 cash back from the $2000 deposit he made earlier that day. She told the Billings branch not to cash the check since Mr. Bergstrom did not have apicture IDandthere wasnosignature card onfile with the bank.TheLaurel branch ofthe bank subsequently ran the name"Terry Bergstrom" through their computer anddiscovered that the bank had processed amortgage loan in the nameof "Tim andTerry Bergstrom." Thebank attempted to contact Terry Bergstrom to find out what was going on. Mary Jowasable to reach the Tim Bergstrom residence and discovered that "Terry L. Bergstrom" was awoman. The bank then contacted the police. Laurel Police Officer Bryan Fisher obtained the surveillance tape from the bank and asked Officer Brett Lund, a forgery specialist with the Billings Police Department, to view the tape

3and the forged check. After viewing the signature and the

videotape, Officer Lundbelieved that the signature hadbeen forged byWalker, whomherecognized from previous forgery investigations. Officer Lundassembled aphotographic lineup consisting of six pictures, the first ofwhich wasWalker. Officer Fisher showed the lineup to Mary Jo, Vickie, andathird bank employee whohadbeen present during the Bergstrom transaction. All three women identified the manin photo No. 1as the manwhoposed asTerry Bergstrom. OnJanuary 19, 1995, the State charged Walker by Information with forgery, afelony, pursuant to 545-6-325, MCA. OnJune 12 through 14, 1995, ajury trral was conducted which resulted in a guilty verdict. Walker filed amotion for anewtrial, which the District Court denied. OnSeptember 28, 1995, the District Court entered its judgment and commitment, sentencing Walker to twenty years in the Montana State Prison. This appeal followed. ISSUE 1 Did the District court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?Before trial, the State learned that the bank's surveillance tape was incompatible with anormal videotape machine. The tape would only play well onthe type of machine owned bythe bank and the bank would not release its machine because it would be left without surveillance. TheState hadacopy of the videotape made andanumber of still-frame photographs were then produced from the

4copy. The original videotape wasplayed for the jury onanormal

videotape machine but since the quality of the tape waspoor, the court allowed the jury to view the copy of the tape. The quality of the copy was not much clearer than the original and the court then allowed the State to admit the still photographs into evidence. Walker argues on appeal that the District Court erred in admitting the photographs into evidence in violation of the "best evidence rule" ascodified in Rules 1001 through 1003, M.R.Evid. Walker claims that the requirements of the best evidence rule required the jury to view the original surveillance tape onthe bank videotape machine. The State argues that Walker did not properly preserve the "best evidence rule" argument for appeal and that even if the District Court erred in admitting the photographs, such error is not grounds for reversing the conviction since Walker cannot demonstrate howthe error affected his substantial rights. During pretrial discussions Walker's attorney indicated he would object to the admissibility of the photographs if they were offered into evidence. Thecourt suggested that the prosecutor be prepared to lay aproper foundation asto whether the photographs

were true copies of the original tape. During the State's direct examination of Officer Fisher, defense counsel madethe following statement to the court after the prosecutor indicated it wastime to talk about the videotape andthe photographs: DEFENSE COUNSEL: Well, I'm going to object onthe best evidence that the ---

5THECOURT:Well, you mayhave to call aperson from the

bank. DEFENSE COUNSEL: I don't know that. The jury has the right to see the entire tape, aswell. THECOURT: Let's proceed. Officer Fisher was then asked to identify the still photographs which were madefrom the videotape. Defense counsel objected for lack of foundation and the court sustained the objection. The State indicated it would lay the proper foundation for the photographs with its next witness. The State then called Michael Taylor as awitness. Taylor

owns avideo and sound store andwasthe individual whomade the copy of the videotape andreproduced the still photographs. After Taylor testified that the copy accurately reflected the content of the original and that the photographs were accurate reproductions from the tape, the State offered the photographs into evidence. Defense counsel objected for lack of foundation and chain of custody problems. The court directed the attorneys into chambers where it cautioned the prosecutor that aproper foundation would require testimony from anumber of witnesses. The court asked defense counsel if he had any doubt about the tape being the original. Defense counsel responded that hedid not but indicated that the best evidence wasthe original tape and not the copy. The court stated that the prosecutor should lay the proper foundation, show the original tape to the jury, and if the quality was poor, lay additional foundation to allow the jury to view the copy. The

6court would then consider whether it would be necessary for the

jury to see the still photographs. The court assured defense counsel that the jury would not view the photographs without seeing the videotape. At that point, defense counsel agreed towaive his prior objection regarding chain of custody and stated "as long as you introduce that videotape and play it, the original, then I don't care where you gofrom there." Court reconvened andthe original tape andcopy were admitted into evidence andviewed bythe jury. TheState then offered into evidence the still photographs, whereupon defense.counsel objected

onthree grounds: (1) lack of foundation; (2) chain of custody; and (3) surprise. The court overruled the first two objections and, after recess, defense counsel agreed that he was not truly surprised that still photographs were going to be used and therefore waived any objection in that regard. After establishing that the photographs depicted events which were taped bythe bank surveillance camera during the time Walker waspresent in the bank,

t1neState offered the photographs into evidence. PROSECUTOR:Your Honor, atthis time Imoveinto evidence State's Exhibits 4 through 8 [the still-frame photographs]. THECOURT:Any objection? DEFENSECOUNSEL: Noobjection, Your Honor. This court has consistently held that aparty's failure to object toanalleged error during trial precludes raising the issue

onappeal. Hando v. PPGIndustries, Inc. (1995), 272 Mont. 146, 151, 900P.Zd 281, 284; Bridger v. Lake (1995), 271Mont. 186, 193,

7896 P.2d 406, 410; State v. Arlington (1994), 265 Mont. 127, 151

875 P.2d 307, 321. Section 46-20-104(2), MCA, provides that failure to make a timely objection during trial constitutes a waiver of the objection except asprovided in 546-20-701(Z), MCA. Walker argues that the transcript shows that defense counsel sufficiently objected to the admission of both the videotapes and the still-frame photographs on"best evidence" grounds andthat the "objection" was never withdrawn. On the contrary, the record indicates that when the still photographs were offered into evidence, Walker wasspecifically asked if hehad any objections. Defense counsel said no. His prior objections for lack of foundation, chain of custody, and surprise hadall been withdrawn

or overruled and the photographs were admitted into evidence free from any objection that the evidence violated the provisions of Rules 1001 through 1003, M.R.Evid. The record clearly indicates that Walker assented to the photographs being admitted once the proper foundation was laid to depict that they accurately represented the contents of the videotape whenWalker waspresent in the bank. Defense counsel's earlier allusions to the original videotape being the "best evidence" are not sufficient to constitute anadequate and timely objection that admission of the photographs violated the best evidence rule. Asaresult, the District Court wasnever given the opportunity to rule onthe matter andwetherefore hold that Walker is precluded from raising this evidentiary issue onappeal.

8ISSUE 2

Did the District Court err in denying Walker's motion for a mistrial when one of the State's witnesses testified that hewas familiar with Walker from past forgery investigations? On direct examination, Officer Lund testified that he recognized Walker on the videotape because "I have had past dealings with Mr. Walker

. in regards to past forgery investigations." Defense counsel objected and the court directed counsel to chambers. Thecourt asked the prosecutor if the State had provided the defendant notice that it intended to introduce evidence of past crimes asrequired byState v. Just (1979), 184 Mont. 262, 602 P.2d 957 (asmodified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52). The prosecutor admitted that no Just notice hadbeen given. Defense counsel then moved for amistrial. TheDistrict Court denied the motion andstated that, instead, it would admonish the jury to not consider the testimony. Court reconvened andthe jury wasadmonished to completely disregard any references madeto prior investigations Officer Lund hadconducted which apparently involved Walker. Walker argues that Officer Lund's statement was clearly inadmissible. Walker relies onState v. Anderson (1996), 275Mont. 344, 349, 912P.2d 801, 804, where westated that it is inevitable that the introduction of evidence of aprior crime will have some prejudicial effect onadefendant. Moreover, Walker argues that the court's curative admonition cannot eliminate the taint of Officer Lund's testimony.

9Wereview adistrict court's denial of amotion for amistrial

to determine whether there is clear and convincing evidence that the court's ruling is erroneous. State v. Rendon (1995), 273Mont. 303, 306, 903 P.Zd 183, 185. Wehave recently clarified the criteria the district court should use whenruling on a motion for

a mistrial. The,court will grant amistrial when there is either

ademonstration of manifest necessity or where the defendant has been denied a fair and impartial trial. State v. Ford (Mont. Oct. 17, 1996), No. 95-158, slip op. at 9. Nevertheless, this Court's role remains to determine whether there is clear and convincing evidence that the court's ruling is erroneous. Inu, weannounced the modified Just rule andstated that: Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to beintroduced. Matt -I 814P.2d at 56. Officer Lund's statement that herecognized Walker from previous forgery investigations wasevidence of other alleged crimes, wrongs, or acts. The State acknowledges that no just notice was given. Thus, the statement should not have been received into evidence. Wehave stated that anerror in the admission of evidence may be cured if the jury is admonished to disregard it. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098 (citing State v. Conrad (19901, 241 Mont. 1, 19, 785 P.2d 185, 190). Moreover, wehave held that reversible error exists only where there is areasonable possibility that the inadmissible evidence might have contributed to the conviction. State v. Cline (1996),

10275 Mont. 46, 57-58, 909 P.2d 1171, 1179 (Citing State v. Earl

(1990), 242 Mont. 279, 283, 790 P.2d 464, 466). In the present case, Officer Lund testified that he recognized Walker on the videotape and that Walker's handwriting on the forged check was familiar to him. Moreover, the jury had already heard Officer Fisher testify that following the crime he presented a photo line-up to Vickie, Mary Jo, and Lanaya Aafedt, a third bank employee present in the bank on the day in question. Officer Fisher stated that all three womenidentified Walker from the photo line-up asthe manwhoposed asTerry Bergstrom. Vickie, Mary Jo, and Lanaya also made in-court identifications of Walker during trial. In light of the entire evidence presented in this case, combined with the court's prompt admonition to the jury, we determine that Officer Lund's statement, by itself, did not contribute to Walker's conviction. Receipt of Officer Lund's statement into the record was, therefore, harmless error. We conclude that the record in this case does not contain clear and convincing evidence that the District Court's denial of Walker's motion for amistrial waserroneous andwehold that the court did not err when it denied the motion. ISSUE 3 Did the District Court err in denying Walker's motion for a

newtrial onthe ground of jury misconduct? During deliberations the jury submitted awritten question to the court requesting the use of a magnifying glass. Defense

11counsel objected and the court wrote the jury back denying the

request. The jury wrote the court asecond note asfollows: Your Honor, I feel it is necessary to inform you that after you told us you 'couldn't provide us with a magnifying glass' wediscovered that a number of the jurors have bifocals which magnified and one of the jurors had a small strip of plastic used to magnify. These proved very helpful to us, but I hope wedidn't impune [sic] the integrity of this jury. As aresult, defense counsel moved for amistrial onthe grounds that the jury created amagnifying glass on its own and did an investigation outside of what it heard in the courtroom. The District Court stated that it would reserve ruling onthe motion for mistrial until after the jury reached averdict. Following the jury's guilty verdict, Walker moved for anew trial, arguing that the jury's use of a magnification device constituted extrinsic evidence. Walker attached to his supporting brief transcribed interviews from twojurors. Thejuror statements indicated that members ofthe jury hadused apiece of plastic that

one member had taken from her purse to help them identify the defendant and to view atattoo on the defendant's arm which had appeared onthe videotape during trial. Relying~on United States

v. George (9th Cir. 1995), 56F.3d 1078, the District Court denied Walker's motion. Wereview adistrict court's ruling on amotion for anew trial to determine whether the court abused its discretion. Hando, 900 P.2d at 283. Absent an abuse of discretion the district court's decision concerning whether ornot to grant amotion for a

12new trial will beaffirmed. State v. Hatfield (19951, 269 Mont.

307, 310, 888 P.2d 899, 901. Onappeal, Walker presents aslightly different argument. He does not argue that useof amagnifying glass constitutes extrinsic evidence, or that use of amagnifying glass is prejudicial per se. Instead, Walker argues that use of the makeshift magnification device constitutes "extraneous prejudicial information" asdefined in Rule 606(b) Cl), M.R.Evid., resulting in jury misconduct. Walker relies onState v. McNatt (1993), 257Mont. 468, 849P.2d 1050, and State v. DeGraw (1988), 235Mont. 53, 764P.2d 1290, to argue that the State failed to rebut the presumption of prejudice which resulted from the alleged jury misconduct. Rule 606(b) Cl), M.R.Evid., provides that a juror may not testify astowhat occurred during the jury's deliberations except when the information pertains to whether extraneous prejudicial information wasimproperly brought to the jury's attention. In State v. Brogan (1995), 272Mont. 156, 900P.2d 284, weheld that juror affidavits maynot beused to impeach averdict based upon internal influences onthe jury. Broqan, 900P.2d at 287 (citing Harry v. Elderkin (1981), 196Mont. 1, 8, 637P.2d 809, 813). Wemust therefore determine whether use of the magnification device constitutes anexternal or internal influence upon the jury. It is only if use of the magnification device constitutes an external influence that the juror statements maybeconsidered to determine if extraneous prejudicial information wasbrought before the jury. Examples of external influence include a juror's

13telephone call obtaining information with regard to previous

litigation bythe plaintiff, visiting the scene of anaccident, or bringing anewspaper article about the trial into the jury room for the jurors to see. Brogan, 900 P.2d at 287 (citing Geiger v. Sherrodd (1993), 262Mont. 505, 510-11, 866P.2d 1106, 1109). Weturn to three recent decisions from the Ninth Circuit Court ofAppeals for direction. In George, the court concluded that the jurors ' use of a magnifying glass, in and of itself, did not constitute extrinsic evidence and that nonewevidence resulted. Georse, 56 F.3d at 1084. In United States v. Brewer (9th Cir. 1986), 783 F.2d 841, 843, the court held that the use of a magnifying glass was indistinguishable from a juror's use of corrective eyeglasses to examine evidence. Finally, in United States v. Miranda (9th Cir. 1993), 986F.2d 1283, 1286, the court noted that a defendant alleging juror misconduct involving a magnifying glass conceded, "as hemust," that amagnifying glass is not extrinsic evidence. It is clear that a jury's use of a magnification device does not constitute extrinsic evidence. Walker's argument that useofthe magnification device created "extraneous prejudicial information" as opposed to "extrinsic evidence" presents only asubtle distinction. Since ajury's use of amagnifying glass does not constitute extrinsic evidence, we conclude that such use cannot beconsidered anexternal influence exposing the jury to extraneous prejudicial information. The jury's use of the makeshift magnification device was an internal

14influence on its deliberation and the juror statements may

therefore not beused to impeach the verdict. Moreover, even if wewere to assume that the magnification device was an external influence, thus allowing the juror statements to beconsidered, the record does not clearly indicate that the jury's use of the magnification device prejudiced the defendant. Oneof the jurors said in her statement that use ofthe plastic strip did not help identify the defendant and that "you really could not identify that asthe defendant" and "it only made us, ah, even more unsure. I' Thus, there wasnothreshold showing of prejudice for the State to rebut. We conclude that the District Court did not abuse its discretion whenit denied Walker's motion for anewtrial based on jury misconduct. Affirmed. 

# 2fzszJustice Weconcur:Justice Terry N. Trieweiler concurring in part and dissenting in

part. I concur with the majority's conclusion resolving the first and third issues. Idissent from the majority's conclusion that Detective Brett Lund's testimony regarding other alleged crimes committed by the defendant washarmless error. Idonot disagree with the majority's recitation of the facts,

nor its analysis of the law, which pertain to that issue. I do disagree with its conclusion that based onother evidence, andthe court's admonition to the jury, there is noreasonable possibility that the inadmissible evidence contributed toWalker's conviction. Walker was charged with and convicted of forgery. The jury

was advised by a detective employed by the Billings Police Department that hehad investigated Walker for the very samekind of crimes in the past and was familiar with him on that basis. Evidence that aperson accused of acrime has committed similar acts in the past is among the most prejudicial types of evidence that can be offered. That is why evidence of prior acts is normally inadmissible. SeeRule 404(b), M.R.Evid. That is whywe have established procedural safeguards for consideration of such evidence, even when it falls within one of the exceptions to the general rule. SeeStatev.Matt (1991), 249Mont. 136, 814P.2d 52. Although there was other evidence from which the jury could have found the defendant guilty of forgery, the jury apparently did

16not consider the evidence conclusive, orit would not have bothered

sending two notes to the District Judge in which they requested better equipment with which toview the bank's video tape, andtold the court that they hadused amagnifying glass to view the still photos taken from the bank's video tape. The jury's uncertainty about the identity of the actual forger was apparently caused by the fact that Walker's arms andhands were tattooed andnotattoos

were reported by eyewitnesses whoobserved the forger onthe day in question. Furthermore, I would conclude that the District Court's admonition, while well intended and consistent with our prior decisions, accomplished absolutely nothing. Infact, the course of events following Detective Lund's improper testimony obviously emphasized its significance. First of all, Walker's counsel was required to state anobjection onthe record; then the trial judge andattorneys retreated from the courtroom for adiscussion outside the presence of the jury; and finally, upon their return to the courtroom the jury was instructed by the court to disregard Detective Lund's previous testimony regarding prior involvement in forgery investigations. Bythat time, it hadto beobvious to the jury that Detective Lund had inappropriately told them something very significant, otherwise the defendant and the District Court would not have been soconcerned about it. While there may be other circumstances in which a proper admonition to ajury could beeffective, this wasnot oneof them. The jury was simply told that the Billings Police Department had 17reason to believe that this person, accused of forgery, had forged

other documents in the past. That wasnot the kind of information that could be erased from the minds of those entrusted with the responsibility for deciding Walker's guilt. For these reasons, Idissent from the majority’s resolution of Issue 2. I would conclude that because testimony was given regarding crimes allegedly committed by the defendant in the past without compliance with those procedural safeguards which weheld

were necessary in Malt, Walker was denied afair trial and the District Court, therefore, abused its discretion whenit denied his motion for amistrial.

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